Sue and Settle: Regulating Behind Closed Doors | U.S. Chamber of Commerce

Sue and Settle: Regulating Behind Closed Doors

Tuesday, September 12, 2017 - 3:30pm

What is Sue and Settle?

"Sue and Settle" refers to when a federal agency agrees to a settlement agreement, in a lawsuit from special interest groups, to create priorities and rules outside of the normal rulemaking process.  The agency intentionally relinquishes statutory discretion by committing to timelines and priorities that often realign agency duties.  These settlement agreements are negotiated behind closed doors with no participation from the public or affected parties.

As an example, between 2009 and 2012, EPA chose not to defend itself in over 60 lawsuits from special interest advocacy groups.  These cases resulted in settlement agreements and EPA publishing more than 100 new regulations - including the recent Clean Power Plan.

Under the new Trump administration, EPA Administrator Scott Pruitt stated in March 2017 that the EPA intended to end the practice of sue and settle.  In an interview, Administrator Pruitt said, "one of the things we’ve done internally… is send a memo out to our regions and also to headquarters to say that the days of sue and settle, the days of consent decrees governing this agency where the EPA gets sued by an NGO, a third party, and that third party sets the agenda, sets the timelines on how we do rulemaking, and bypassing rulemaking entirely have ended. (Source)

NEW DATABASE OF SETTLEMENTS: In August 2017, the U.S. Chamber of Commerce received a Freedom of Information Act request response from the Department of Justice's Environmental and Natural Resources Division with a database listing all Clean Air Act, Clean Water Act, and Endangered Species Act settlements between January 20, 2009 and January 19, 2017.  The database of settlements, which is accessible HERE, is divided in three sections: (1) Environmental Defense, (2) Environmental Enforcement, (3) Wildlife.

Recent Notices of Intent to Sue on EPA's Website

8/23/2017CAA, Environmental Defense Fund; Environmental Integrity Project; Adirondack Council; Maryland Environmental Health Network;Chesapeake Climate Action Network;Sierra Club Environmental Law Program; Chesapeake Physicians for Social Responsibility
NOI dated August 4, 2017, filed on behalf of public health, environmental, and conservation organizations for Failure to Perform a Nondiscretionary Duty to Act on Maryland's "Good Neighbor" Petition Under Section 126 of the Clean Air Act.
8/22/2017CAA, Douglas Lindamood
Alleged violation of emissions limits and SIPs related to VW, Audi, and Porsche vehicles.
8/16/2017CAA, Ho-Chunk Nation and Sierra Club, and its John Muir Chapter
For failure to respond to their petition to object to the Title V Operating Permit issued by the Wisconsin Department of Natural Resource to Wisconsin Proppants, LLC.
8/3/2017CAA, Center for Biological Diversity, the Center for Environmental Health, and the Clean Air Council
For EPA’s failure to make a failure of finding to submit for the 2012 PM2.5 NAAQS nonattainment areas for SIPs.
For a full list of EPA's Notices of Intent to Sue, visit

What is New in Sue and Settle?

    August 2017

    See all -- Sue and Settle News Archive

    What are the Economic Implications of our Findings?

    Interactive List of All Sue & Settle Cases

    Also see this alternate table, which lists court cases resolved by agency action in response to legal challenges.

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